University of Miami Law Prof: Affirmative Consent Effectively Shifts Burden of Proof to Accused

University of Miami (Florida) law professor Tamara Rice Lave has joined the growing number of people—including FIRE—arguing that “affirmative consent” policies unfairly shift the burden of proof to students accused of sexual misconduct to prove themselves innocent. In a pair of posts on the legal blog PrawfsBlawg, Professor Lave discusses her concerns with affirmative consent policies and argues that even the best-written affirmative consent policy will prove unfair in the university setting, “with its fewer procedural protections for the accused.

In her first post last week, Professor Lave wrote that although affirmative consent certainly reflects a positive model for communication between sexual partners, it should not be legally required:

When I was a public defender, I used to always remind jurors that because the [burden of proof] was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit. But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented. [Emphasis in original.]

She went on to praise the recent court decision in Mock v. University of Tennessee at Chattanooga, writing that she was “relieved that at least one judge is similarly critical of affirmative consent” and that she hoped other judges would follow suit.